A Success in 2016: The First UN Independent Expert on Sexual Orientation and Gender Identity

By Arvind Narrain and Kim Vance

At the end of 2016, the human rights landscape looks increasingly bleak. In a world made wintry by the election of Donald Trump as the president of the United States, one positive outcome for the human rights struggle more broadly, and for the LGBT struggle more specifically, was the victory in the battle to protect the first UN mandate on addressing violence and discrimination on grounds of Sexual Orientation and Gender Identity (SOGI).

In September of 2016, Prof Vitit Muntarbhorn was appointed as the first Independent Expert on SOGI by the Human Rights Council. This followed the successful adoption of resolution 32/2 of the Human Rights Council in June of 2016. However, this appointment, which followed the established procedure of the Human Rights Council, was repeatedly challenged by hostile states in the various organs of the General Assembly including the Third Committee, the Fifth Committee and the plenary of the General Assembly. After the victory in the final vote on December 23rd, 2016, we stand assured that there will be a dedicated mechanism of the United Nations devoted to documenting and responding to the human rights violations committed against persons on grounds of sexual orientation and gender identity in every country around the world.

The fight for the establishment of the Independent Expert on SOGI has been uniquely difficult spanning over five key votes in 2016. These five votes on the SOGI mandate provide a significant barometer on the state of LGBT rights globally.

The first vote was at the Human Rights Council whose membership is comprised of 53 countries from all regions of the world. Resolution 32/2 of the Human Rights Council establishing the Independent Expert was won by a close vote (23 for, 18 against and 6 abstentions) in June of 2016. In reality, this was not just one vote, but a series of votes on numerous hostile amendments, some of which made their way in to the preambular paragraphs of the resolution. In the end, however, during the concluding vote on the amended resolution, the mandate was approved.

The key feature of the vote was a near consensus in Latin America, Europe and North America on this mandate. However, this alone would have been insufficient to get the mandate established. There was also emerging support in Asia with Vietnam, Mongolia and Japan voting for the mandate, and India and Philippines abstaining on the vote. Even in Africa, which was the locus of opposition, South Africa, Botswana and Ghana abstained on this vote, making a regional bloc position against the mandate impossible to achieve. The first vote in the Human Rights Council provides the analytical template which the remaining four votes at the General Assembly mirrored and expanded upon.

A criticism of the vote establishing the SOGI mandate made by opposing states was that a mandate of such significance was being established by a body with a limited membership. The Human Rights Council was seen as insufficiently democratic with the truly democratic and representative forum being the General Assembly and its allied bodies, in which voting was by all states which were members of the UN. Therefore, the opposing states saw it as only legitimate that the mandate had to be subject to the approval of the General Assembly.

This attempt to subject the work of the Human Rights Council to the oversight of the General Assembly was wholly unprecedented. The Human Rights Council was acting within its remit in setting up the SOGI mandate, and the argument of states which supported the mandate was that this cherry picked opposition to resolution 32/20 would cast a cloud on the functioning of the Human Rights Council. They also argued it would disrupt the institutional architecture within which human rights concerns are addressed by the UN system. Nonetheless, the opposing states were prepared to take this wholly unprecedented step, as, in their opinion, sexual orientation and gender identity had no basis in international law. Even though their actions were couched as a “delay”, it was clear that their goal was that this mandate had to be nullified at all costs.

There were four votes in all to try and nullify the SOGI mandate in the General Assembly. The first vote was at the Third Committee, where the African Group introduced a resolution which asked to ‘defer consideration’ on the SOGI resolution to the next session of the General Assembly, to give more time to ‘determine the legal basis upon which the mandate of the special procedure established therein will be defined.’ An amendment to this resolution was introduced by the Latin American and Caribbean (LAC) countries, asking for deletion of the above paragraph. In the vote which followed, the LAC amendment deleting the reference to deferral of the SOGI resolution passed with 84 for, 77 against and 17 abstentions. In a second vote in the General Assembly plenary, the Draft Report of the Human Rights Council was sought to be amended by the African Group again, by reintroducing the clause on deferral of resolution 32/10 which had just been defeated in the Third Committee. This resolution was again defeated by 77 voting for, 84 against and 16 abstentions. Although, the numbers were roughly the same, the configuration of the countries in the second vote was somewhat different.

The third vote was at the Fifth Committee, where the budgetary support for the work of the SOGI independent Expert was sought to be excised. This proposal by the African group was defeated by 82 against, 65 in favour and 16 abstentions. In the fourth and final vote, the proposal to defund the work of the Independent Expert was raised in the plenary of the General Assembly where the proposal was again defeated by 65 in favour, 81 against and 16 abstentions.

The mandate of the Independent Expert on SOGI was subjected to four votes all of which attempted to denude the mandate. However, the opposition has only succeeded in strengthening the mandate, as those in support can now point to four votes in which all countries of the world participated and where the understanding that ‘sexual orientation’ and ‘gender identity’ were not concepts known to international law was rejected. The combined result of these four votes is that the UN have now firmly committed themselves to combatting violence and discrimination on grounds of sexual orientation and gender identity.

A preliminary analysis of the vote reveals that the victory is based on significant cross regional support. The two issues on which countries had to take a position were whether the General Assembly/Third Committee cherry picking certain resolutions of the Council for deferral would disturb the institutional integrity of the human rights system and whether SOGI was an established legal term and a mandate to protect the same could be established.

While the argument on institutional integrity of the human rights system was obviously important, the issue that provoked passionate controversy was the substantive heart of the matter i.e. the legitimacy of the SOGI mandate. If we are to unpick this strand of the vote, the following points can be made.

The heart of the support for the Independent Expert came from Latin America, Central America, Europe and North America. This was bolstered by a rising tide of support from Asia, with its heart in East Asia, and emerging support in South East Asia and South Asia. In East Asia, Mongolia, Japan and Korea have emerged as key supporters. In South East Asia, Vietnam, Cambodia, Timor Leste and Thailand are supporters with Philippines, Myanmar and Laos abstaining in the vote. In South Asia, Sri Lanka and Nepal are key supporters with India and Bhutan abstaining on the vote. In the Pacific Island states, Palau, Fiji, Samoa, Tuvalu, Kiribati, Marshall Islands have voted in favour with Solomon Islands, Tonga and Micronesia not voting.

In Africa, the flag of support is held aloft by South Africa and Cabo Verde. Seychelles has alternated between voting yes and not voting, and Angola between voting against and abstaining. Mozambique, Liberia, Sao Tome and Principe have either abstained or not voted. In the Caribbean region, the key supporters are Bahamas and the Dominican Republic with Belize alternating between support and opposition. Cuba, Haiti, Dominica and Barbados have all either abstained or not voted.

The bloc that seems most recalcitrant to this trend of change, as it were, is the Organisation of Islamic Conference (OIC). However, even this seemingly impregnable bloc is porous. The OIC had its outlier in Albania, which was the only OIC country to vote for the SOGI mandate in the Human Rights Council. However, when it came to the Third Committee and the General Assembly, Albania was joined by Turkey in voting for the independent Expert, and Lebanon, Suriname, Gambia, Tunisia, Turkmenistan, and Mozambique did not vote. Though only eight out of 57 members did not vote with the OIC, the breaking of group consensus is significant.

The OIC in its charter claims to ‘foster noble Islamic values concerning moderation, tolerance, respect for diversity’. The fact that Albania and Turkey choose to vote against the bloc consensus only indicates that there are different interpretations of how to promote the ‘Islamic values’ of ‘moderation, tolerance, respect for diversity’. Albania and Turkey, by voting for the SOGI mandate, are indicating that there is no incompatibility between the Islamic faith and the acceptance of SOGI as a human rights issue. Turkey and Albania, and hopefully the others who did not vote, in the future could chart out a future where the Islamic values of ‘tolerance and respect for diversity’ can be reconciled with support for non-discrimination against persons on grounds of SOGI.

With respect to the African Group, the key dissenter has been South Africa. South Africa shifted from an abstention in the vote establishing the mandate of the Human Rights Council, to eloquent support in the General Assembly. The statement by the South African Ambassador was easily the most powerful case made in defence of the mandate of the Independent Expert. As Ambassador Jerry Matija noted, ‘after years of struggle our people black and white, straight and non straight came together to bury discrimination once and for all. The Bill of Rights is very clear about the South Africa we fought for, were imprisoned for and were exiled for, a South Africa without discrimination. The question is one of our values and beliefs and even if we are alone on the continent we will stand and fight it (discrimination against LGBTI persons). South Africa will vote yes based on our constitutional imperative.’

The South African statement was important because it cut through the discourse of north and south, as well as east and west, and made the case that the support for LGBTI Rights was rooted in the constitutional values of South Africa which were in turn were a legacy of the anti apartheid struggle. The support for the right to dignity of all persons, including LGBTI persons, is a value of the anti-apartheid movement, and as such all global south countries which championed the anti-apartheid struggle should see that there is no contradiction between being a supporter of anti-racism and the support for LGBTI rights.

The other important point made by Ambassador Matija was that to vote for safeguarding the mandate of the Independent Expert was a ‘constitutional imperative’ for South Africa. This again is a lesson to other countries around the world where the norm of non-discrimination and protection of dignity is a part of their Constitution. India, for example, argues that until the anti sodomy law exists, it cannot vote in favour of a SOGI mandate. If one takes seriously Ambassador Matija’s argument, then the Indian vote should be in line with the ‘constitutional imperative’ of the protection of the dignity of all persons and the vote should not be held hostage by an outdated colonial law such as Section 377 of the Indian Penal Code.

The broad lesson we can take away from the five votes is that there is no region of the world which does not have support for the SOGI mandate. There is no global north and south position on this issue, just as there is no east and west position on this issue. It is not the case that the north is supportive and the global south is not. Neither is it the case that this is an issue thrust by western nations on resistant non-western cultures. This is because, as noted above, countries as diverse as Sri Lanka, Nepal, Korea, Mongolia, Dominican Republic, Vietnam and Fiji, none of who are from the global north, were key supporters of the mandate. Indeed, the reality was that NOT ONE bloc that typically rallies around a unified position in UN spaces (CARICOM, the African Group, OIC) was able to solidify opposition to this mandate.

There is an emerging recognition that the cornerstone of the human rights system, protection of the dignity of the individual, is a value that matters across regions and groups. While there are significant hurdles to cross, what is clear is that discrimination and violence on grounds of SOGI will from now on have to be addressed as a pressing global issue. However, one key challenge which Mr. Vitit Muntarbhorn will face, will be the pledge of countries in the OIC bloc, the African Group, as well as Russia to not cooperate with the new SOGI mandate.

The establishment of the Independent Expert provides a mechanism to shed a global spotlight on seemingly local issues and break the conspiracy of silence which still shrouds the violence and discrimination experienced by LGBTI people in too many countries around the world. It is the task of activists around the world to now use the institutional lever of the Independent Expert on SOGI to take forward struggles in different national and regional contexts.